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Channel Excavators v. Amato Corp.

Supreme Court, Special Term, Nassau County
Dec 8, 1965
48 Misc. 2d 429 (N.Y. Sup. Ct. 1965)

Summary

In Channel, the court denied summary judgment on a note which provided that the defendant owed the plaintiff an amount stated because the note was not an instrument for the payment of money as prescribed by CPLR § 3213.

Summary of this case from Slade v. Newman

Opinion

December 8, 1965

Sheldon J. Sanders for plaintiff.

George B. McPhillips for defendant.


Motion for an order for summary judgment in lieu of complaint pursuant to CPLR 3213 is denied. The plaintiff proceeds on a paper which is a bill or statement form of the defendant containing the words "We owe Channel Excavators" followed by an amount. This paper is unsigned. It is not an "instrument for the payment of money only" as prescribed by 3213 ( supra). To come within the section the instrument need not be a negotiable instrument ( Louis Sherry Ice Cream Co. v. Kroggel, 42 Misc.2d 21); however, the section was designed "to provide a speedy and effective means of securing a judgment on claims presumptively meritorious" where a formal complaint would be superfluous and it would be desirable to avoid delay. (4 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 3213.01.) Here, the determination of the action would depend upon proof of facts outside the instrument itself ( M. Gilston, Inc. v. Ullman, 45 Misc.2d 6). (See, also, Signal Plan v. Chase Manhattan Bank, 23 A.D.2d 636.)

Here, "the moving and answering papers do not define the issues satisfactorily." (4 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 3213.01.) The plaintiff shall serve its complaint within 20 days from the date of this order and the defendant shall interpose its answer 10 days after the date of the service of the said complaint.


Summaries of

Channel Excavators v. Amato Corp.

Supreme Court, Special Term, Nassau County
Dec 8, 1965
48 Misc. 2d 429 (N.Y. Sup. Ct. 1965)

In Channel, the court denied summary judgment on a note which provided that the defendant owed the plaintiff an amount stated because the note was not an instrument for the payment of money as prescribed by CPLR § 3213.

Summary of this case from Slade v. Newman

In Channel, the court denied summary judgment on a note which provided that the defendant owed the plaintiff an amount stated because the note was not an instrument for the payment of money as prescribed by CPLR § 3213.

Summary of this case from Slade v. Newman
Case details for

Channel Excavators v. Amato Corp.

Case Details

Full title:CHANNEL EXCAVATORS, INC., Plaintiff, v. AMATO TRUCKING CORPORATION…

Court:Supreme Court, Special Term, Nassau County

Date published: Dec 8, 1965

Citations

48 Misc. 2d 429 (N.Y. Sup. Ct. 1965)
264 N.Y.S.2d 987

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